351 F.

2d 429

UNITED STATES of America ex rel. Anthony RUSSO,

Appellant,
v.
The STATE OF NEW JERSEY and the Principal Keeper of
the
State Prison atTrenton, New Jersey.
UNITED STATES of America ex rel. Frank BISIGNANO,
Appellant,
v.
The STATE OF NEW JERSEY and the Principal Keeper of
the
State Prison atTrenton, New Jersey.
Nos. 14833, 14869.

United States Court of Appeals Third Circuit.

Argued Nov. 12, 1964.
Decided May 20, 1965, Rehearing Denied Oct. 13, 1965.

Irving I. Vogelman, Jersey City, N.J. (Raymond A. Brown, Jersey City,

N.J., on the brief), for appellant-petitioner, Anthony Russo.
Richard F. Plechner, Metuchen, N.J., for appellant Frank Bisignano.
Brendan To Byrne, County Prosecutor of Essex County, Newark, N.J.
(Peter Murray, Barry H. Evenchick, John G. Graham, Asst. County
Prosecutors, of counsel and on the brief), for appellees.
Jacques H. Fox, President, District Attorneys' Association of
Pennsylvania, Media, Pa., James C. Crumlish, Jr., Dist. Atty. for City and
County of Philadelphia, Joseph M. Smith, Asst. Dist. Atty., Philadelphia,
Pa., George M. Scott, President National District Attorneys' Ass'n,
Minneapolis, Minn., John W. Hayden, Jr., Deputy Atty. Gen., of New
Jersey, Criminal Investigation Section, Trenton, N.J., for groups wishing
to intervene.
Arthur J. Sills, Atty. Gen. of N.J. (John W. Hayden, Jr., Deputy Atty. Gen.

of counsel and on the brief), for State of New Jersey, amicus curiae, on
rehearing.
Before BIGGS, Chief Judge, and FORMAN and SMITH, Circuit Judges.
BIGGS, Chief Judge.

These are appeals from denials of writs of habeas corpus by the court below.
The petitioners-appellants, Russo and Bisignano, with a co-defendant, LaPierre,
were indicted and convicted of murdering a policeman in Newark, New Jersey.
The murder was committed while Russo and Bisignano were engaged in the
commission of the felony of attempting to rob a tavern. The convictions were
affirmed by the Supreme Court of New Jersey, State v. LaPierre, 39 N.J. 156,
188 A.2d 10 (1963). Bisignano attempted to have his conviction reviewed by
the United States Supreme Court, but certiorari was refused. Bisignano v. New
Jersey, 374 U.S. 852, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963).

The operative facts are as follows. At approximately 11:15 on the night of

March 15, 1961, Russo and Bisignano, with LaPierre, attempted to 'holdup' a
tavern in Newark, New Jersey. Bisignano and Russo entered the tavern; Russo,
brandishing a revolver, announced their purpose. Joseph Hagel, an off-duty
policeman, was present and drew a pistol in an attempt to prevent the robbery.
Shots were exchanged; Hagel was mortally wounded, while Russo was struck
by a bullet in his right arm. Russo, LaPierre and Bisignano then fled from the
tavern. LaPierre was quickly apprehended by Newark police officers less than
three blocks from the scene of the crime. Soon thereafter, Russo was seized
approximately five blocks from the tavern. Bisignano was arrested the
following morning.

When LaPierre and Russo were placed under arrest, they were first taken back
to the tavern. None of the four eye witnesses to the shooting was able to
identify LaPierre since, as it later developed, LaPierre had been stationed
outside of the tavern in the 'getaway' car. Russo was identified immediately as
possibly being one of the two men who had attempted the robbery, although
none of the four witnesses positively identified Russo.

LaPierre was then taken to police headquarters while Russo was taken to a
hospital for treatment of his wounded right arm. He was admitted to the
hospital in the early morning of March 16. After emergency treatment was
rendered to Russo, he was questioned for a short time by four members of the
Newark police force, but he refused to admit complicity in the crime. Russo

also refused to permit an operation to excise the bullet from his arm. However,
the pain from the bullet became excruciating and, on March 17, he submitted to
an operation. He was accompanied to the operating room by a police officer.
Upon return to his hospital bed from the operating room, Russo, for the first
time, admitted his participation in the attempted hold up under the questioning
of two police detectives. After the operation, Russo was detained at the hospital
until March 24, at which time he was released from the hospital in the custody
of the police. It is undisputed that during Russo's entire detention in the hospital
he was under constant police guard. In addition, he was shackled to the bed to
prevent, we assume, any possibility of escape. Interrogation at the hospital was
sporadic and it appears that no sustained interrogation was made between the
oral admissions on the 17th and his release from the hospital on the 24th.
5

Upon Russo's release from the hospital he was taken directly to an interrogation
room at police headquarters. He was questioned there for approximately two
hours before he confessed orally. Russo was then detained in the interrogation
room for an additional three hours so that his oral statement could be reduced
to writing and signed by him.

Russo was not taken to a magistrate for a preliminary hearing until March 28.
At that time, Russo's hearing was postponed until April 4. No explanation
appears in the record as to the reason for the postponement,1 but it is relevant to
note that the Grand Jury returned an indictment on March 30.

At the trial in the Essex County Court, Law Division, held at Newark, New
Jersey, there was psychiatric testimony to the effect that Russo was within 'the
lower reaches of the average range of intelligence.' There was also evidence
that Russo 'was markedly deficient with respect to his capacity for verbal
abstraction, the capacity to think abstractly, and the capacity to evaluate
external reality with any validity, with any substance, with any genuine
understanding of what is going on around him * * * that his social judgment
and perceptual alertness were massively impaired with respect to what the norm
might be.'

Bisignano was arrested on the morning of March 16 at approximately 10:30

and was taken immediately to a soundproof interrogation room. He was
questioned for about two and a half hours by at least nine different policemen
working in relays of four and five. During this interrogation period LaPierre
was seated outside of the interrogation room. At frequent intervals, policemen
questioning LaPierre would check his answers with Bisignano's answers and
Bisignano's answers were checked against LaPierre's answers. In addition, the
answers of both were being checked against a statement given to the police by

Veronica Szmatowicz, who was Russo's financee, who had been arrested with
Bisignano that morning. As a result of this cross-checking of stories, it is
difficult to determine accurately how many police officers actually participated
in the questioning of Bisignano.
9

Bisignano finally admitted orally his complicity in the crime at about 1:30 P.M.
There was then a break in the interrogation process of about two hours. Then,
from approximately 3:30 P.M. until approximately 6:30 P.M., Bisignano's oral
statement was reduced to writing and signed by him. He was not permitted to
see any visitors until after his written statement was signed.

10

Bisignano was not taken to a magistrate until March 20, at which time his
hearing was postponed to March 28. The hearing was again postponed until
April 4, at which time he had already been indicted. See note 1, supra.

11

On the day following their respective confessions, Russo and Bisignano were
taken to the tavern and asked to re-enact their crime, which they did, thereby
further incriminating themselves.

12

The court below made an affirmative finding, well-supported and

uncontroverted by the record, that neither Russo nor Bisignano were at any
time prior to the signing of their confessions informed that they had a right to
remain silent, that they had a right to counsel and that anything they said could
be used against them. It appears that it was not until April 4 that the two were
informed of their rights.

13

It should be noted further that Bisignano rested on the transcript of the state
court trial at his federal habeas corpus hearing. Russo offered some additional
evidence in the way of new evidence in addition to his reliance on the state trial
transcript.
I. ILLEGAL DETENTION

14

Russo and Bisignano assert that any confession made during an illegal
detention is inadmissible at trial. There is no doubt that the detentions were
illegal under New Jersey law, see note 1, supra, and that the Newark police
force disregarded the rights secured to an arrested person under the law of New
Jersey. The petitioners-appellants press the point that the circumstances under
which their confessions were obtained transgressed the rights secured to them
by the Fourteenth Amendment and therefore were inadmissible in evidence.
While it is the rule in federal prosecutions that confessions obtained in these

circumstances must be suppressed, Mallory v. United States, 354 U.S. 449, 77

S.Ct. 1356, 1 L.Ed.2d 1479 (1957); McNabb v. United States, 318 U.S. 332, 63
S.Ct. 608, 87 L.Ed. 819 (1943), this exclusionary rule is a function of the
supervisory power of the federal courts over federal prosecutions and does not
rise to the dignity of a constitutional prohibition. Culombe v. Connecticut, 367
U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Stroble v. State of California,
343 U.S. 181, 197, 72 S.Ct. 599, 96 L.Ed. 872 (1952); Gallegos v. State of
Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951). It follows that this
defense asserted by the appellants must fall.
II. PHYSICAL COERCION
15

Both Russo and Bisignano testified that the confessions were the product of
physical beatings and punishment, accompanied by threats of more physical
harm. Russo also testified that while at the hospital he was subjected to
physical punishment and torturous treatment by the police. Bisignano testified
that the police threatened to arrest his wife if he did not confess. The evidence
of the petitioners was corroborated to some degree by the statements of various
witnesses who testified that they saw bruises or heard complaints by Russo and
Bisignano of police brutality. The police denied all accusations of physical
abuse, threats or promises and, in fact, testified that both petitioners cooperated
with them in solving the case. The State produced additional testimony to rebut
the inferences of physical abuse. It is clear that there was a conflict in the
evidence and that the issue was solely one of credibility. Under these
circumstances, we must accept the findings of fact made by the triers of fact,
here the New Jersey state court and the court below. Both found no physical
coercion and we are bound by that finding. Haynes v. State of Washington, 373
U.S. 503, 515, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Culombe v. Connecticut,
367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Brown v. Allen, 344 U.S.
443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Watts v. State of Indiana, 338 U.S. 49,
69 S.Ct. 1347, 93 L.Ed. 1801 (1949); United States ex rel. Johnson v. Yeager,
327 F.2d 311 (3 Cir.), cert. denied, New Jersey v. Godfrey, 377 U.S. 977, 984,
84 S.Ct. 1882, 12 L.Ed.2d 745 (1964); United States ex rel. Smith v. State of
New Jersey, 323 F.2d 146 (3 Cir. 1963), cert. denied, 377 U.S. 1000, 84 S.Ct.
1927, 12 L.Ed.2d 1049 (1964).
III. MENTAL OVERBEARING

16

Both petitioners also claim that the length of their detentions, when combined
particularly in the case of Russo with his mental condition, rendered the
confessions coerced in that they were the products of overborne minds. There is
no 'litmus-paper test' that a court can look to or apply in order to determine

whether a statement, amounting to a confession, was made voluntarily, i.e., that

it was the product of a free will. Rather, we must look to all the relevant factors
and all must be considered and weighed together. Culombe v. Connecticut, 367
U.S. 568, 601, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). See Lynumn v. State of
Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). In the case of
Bisignano the factors as they appear on the record show that the questioning
was of rather short duration, although conducted in the absence of counsel and
with no warning of his constitutional safeguards. However, we think that within
the decisions of this circuit, there is no question that the confession was not
coerced. See United States ex rel. Johnson v. Yeager, supra; United States ex
rel. Smith v. State of New Jersey, 323 F.2d 146 (3 Cir. 1963), cert. denied, 377
U.S. 1000, 84 S.Ct. 1927, 12 L.Ed.2d 1049 (1964); United States ex rel. Smith
v. State of New Jersey, 322 F.2d 810 (3 Cir. 1963), cert. denied, 376 U.S. 928,
84 S.Ct. 678, 11 L.Ed.2d 623 (1964).
17

As to Russo, were we confronted only with the police activity at the police
station we could conclude without difficulty that Russo's statement there made,
the equivalent of a confession, was voluntary. But we have more. There was the
questioning of Russo at the hospital, the crucial portion of which was
conducted by the two police detectives shortly after the operation had been
performed and when he was shackled by his ankle to his bed. Russo admitted,
as stated previously, his active participation in the attempted hold up.
Interrogation of Russo under the circumstances seems repugnant to concepts of
fairness. In addition there is the psychiatric testimony tending to show that
Russo was susceptible to suggestions and unable to relate his present actions to
future consequences. There is the additional problem that even when he was
questioned at the police station Russo was in a weakened condition and his arm
was still in a sling. These factors, when combined with the lack of any warning
to Russo as to the constitutional safeguards to which he was entitled and his
illegal detention, could create an inference that the confession was the product
of an overborne mind.

18

On the other hand, however, it is possible to draw the inference that Russo had
declined to permit the removal of the bullet from his arm because of his fear
that ballistics tests would prove that bullet had been fired from the revolver of
the police officer who was killed at the scene of the crime, thus implicating
Russo in the attempted robbery and murder. The further inference can be drawn
that after the bullet had been removed Russo gave up all hope of extricating
himself from the situation in which he found himself and confessed the
attempted robbery. This inference is strengthened by the fact that the
confession occurred almost immediately upon Russo's return from the operating
room.

19

On balance, we conclude that this inference outweighs any inference of

coercion on these facts.
IV. DENIAL OF RIGHT TO COUNSEL

20

Both Russo and Bisignano argue that the failure of the police to warn them of
their constitutional right to remain silent, of their constitutional right to counsel
and to inform them that anything that they said might be held against them
requires that their oral and written statements be excluded and hence
necessitates the reversal of the judgments of conviction.2

21

In respect to coerced confessions, the Supreme Court, in recent years, has taken
the position that such confessions are excluded not only because they may be
unreliable but also because they offend the concept of the accusatory system,
an essential part of the fundamental legal philosophy under which this nation
was founded. See Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93
L.Ed. 1801 (1949); see also 112 U.Pa.L.Rev. 394 (1964). 'Our decisions under
that Amendment (the Fourteenth) have made clear that convictions following
the admission into evidence of confessions which are involuntary, i.e., the
product of coercion, either physical or psychological, cannot stand. This is so
not because such confessions are unlikely to be true but because the methods
used to extract them offend an underlying principle in the enforcement of our
criminal law: that ours is an accusatorial and not an inquisitorial system-- a
system in which the State must establish guilt by evidence independently and
freely secured and may not by coercion prove its charge against an accused out
of his own mouth.' Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735,
739, 5 L.Ed.2d 760 (1961). Reliance on the accusatory system has introduced
into the opinions of the Supreme Court additional safeguards to protect a
defendant against the introduction into evidence of possibly coerced statements.
See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
These same concepts have compelled a greater reliance on the presence or
absence of counsel as a factor in determining the voluntariness of a confession.
Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513
(1963); Lynumn v. State of Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922
(1963); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037
(1961); Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3
L.Ed.2d 1265 (1959); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed.
948 (1954). See generally, Kamisar & Choper, The Right to Counsel in
Minnesota: Some Field Findings & Legal-Policy Observations, 48 Minn.L.Rev.
1 (1963); Enker & Elsen, Counsel for the Suspect: Massiah v. United States and
Escobedo v. Illinois, 49 Minn.L.Rev. 47 (1964); Note, An Historical Argument
for the Right to Counsel During Police Interrogation, 73 Yale L.J. 1000 (1964).

In Spano, supra, four Justices would have reversed the conviction solely
because of the absence of the defendant's counsel at a post-indictment
interrogation.
22

Aside from the expansion of the importance of the aid of counsel for the
accused in determining the voluntariness of a confession, the Supreme Court
has expanded Sixth Amendment protection3 as an independent ground for
exclusion of a confession or for granting a new trial. In Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court held that
a criminal defendant in a state court is entitled to the same right to counsel as a
criminal defendant in a court of the United States. Compare Johnson v. Zerbst,
304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

23

The effect of Gideon has been to expand the right to counsel and there has also
been a widening of the concept of the stage or stages when that right attaches.
We conclude that it is now the law that the right to counsel is present at every
critical stage of the proceedings. It has definitely been settled that the right
attaches at arraignment where, under state law, that stage is critical as
frequently it must be deemed to be. White v. State of Maryland, 373 U.S. 59, 83
S.Ct. 1050, 10 L.Ed.2d 193 (1963); Hamilton v. State of Alabama, 368 U.S. 52,
82 S.Ct. 157, 7 L.Ed.2d 114 (1961); see Pointer v. State of Texas, 380 U.S. 400,
85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

24

More recently, in 1964 the Supreme Court, in Escobedo v. State of Illinois, 378
U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Massiah v. United States, 377
U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246,4 has held that, under certain
circumstances, the right to counsel attaches at the interrogation level. These
cases hold that where the right attaches any confession obtained in the absence
of counsel must be suppressed independent of any issue of the voluntariness of
the confession. In Massiah, the petitioner had already been indicted and was
free on bail. Massiah's alleged partner in crime agreed to cooperate with the
police. By prearrangement with the police, a radio transmitter was installed in
the partner's automobile, thereby enabling the police to hear conversations
conducted in the car. The partner talked with Massiah in the car and obtained
incriminating statements from him. The Supreme Court held that the statements
were inadmissible since the police practice offended Massiah's right under the
Sixth Amendment to the protection of counsel, relying on the concurring
opinions in Spano, supra. The majority opinion treated this surreptitious
questioning as an interrogation by the police and held that at this point in the
proceedings, i.e. post-indictment, Massiah had the right to the assistance of
counsel.

25

In Escobedo, the Supreme Court extended the right to counsel to a person who
had not been indicted or arraigned, but who had been taken into custody and
interrogated by the police at the police station. Escobedo had an attorney and
had conferred with him a few days prior to his interrogation at the police
station. During his detention by the police Escobedo's attorney was present in
the building and attempted to speak to his client but was denied access to him
by the police. Escobedo also requested permission to see his counsel, but the
police denied that request. The Supreme Court stated: 'We hold, therefore, that
where, as here, the investigation is no longer a general inquiry into an unsolved
crime but has begun to focus on a particular suspect, the suspect has been taken
into police custody, the police carry out a process of interrogations that lends
itself to eliciting incriminating statements, the suspect has requested and been
denied an opportunity to consult with his lawyer, and the police have not
effectively warned him of his absolute constrcutional right to remain silent, the
accused has been denied 'the Assistance of Counsel' in violation of the Sixth
Amendment to the Constitution as 'made obligatory upon the States by the
Fourteenth Amendment,' * * * and that no statement elicited by the police
during the interrogation may be used against him at a criminal trial.' 378 U.S. at
490-491, 84 S.Ct. at 1765. The Court again stated its holding at 492, 84 S.Ct. at
1766: 'We hold only that when the process shifts from investigatory to
accusatory-- when its focus is on the accused and its purpose is to elicit a
confession-- our adversary system begins to operate, and, under the
circumstances here, the accused must be permitted to consult with his lawyer.'

26

The concern of the Supreme Court in Escobedo was to determine the point at
which the right to counsel attached. Not every police interrogation requires the
presence of counsel, but when the focus of the investigation shifts from
inquiries of a general nature to the investigation of the acts of a particular
suspect counsel for the individual subject to the interrogation must be present
unless counsel be intelligently waived by the suspect. United States v.
Konigsberg, 336 F.2d 844, 853 (3 Cir.), cert. denied, 379 U.S. 933, 85 S.Ct.
334, 13 L.Ed.2d 344 (1964). At the time the confessions of Bisignano and
Russo were obtained the focus had shifted. When Bisignano confessed the
police already had the statement of LaPierre which implicated both Bisignano
and Russo. At the time Russo confessed the police had the confessions of both
LaPierre and Bisignano. In addition, when Bisignano and LaPierre confessed
the police also had the statement of Veronica Szematowicz which incriminated
Bisignano and Russo. Additionally, as to Russo, the police were in possession
of a liquor bottle and its carton, both of which contained Russo's fingerprints.
The bottle and the container were found in the 'getaway' car parked in front of
the tavern. If this were not enough, there is also the fact that both Bisignano
and Russo fitted the general descriptions given to the police by eye witnesses

and Russo had been identified as possibly being one of the two holdup men. We
hold on these facts that the focus had shifted from a general inquiry into an
unsolved crime to an accusatory process involving Bisignano and Russo.
27

Nor can it be contended successfully that the questioning process here did not
lend itself 'to eliciting incriminating statements.'

28

There is, however, a factual distinction between the cases at bar and Escobedo.
In Escobedo, there had been a request for counsel; here there was none. Is this
factual distinction a tenable ground for distinguishing Escobedo from the cases
at bar?

29

Certainly it is untenable to ground a distinction on the fact that Escobedo had

already hired his own attorney while Bisignano and Russo would have required
appointed counsel. Such a distinction smacks of denial of equal protection once
it is determined that there is a right to counsel at this stage of the proceedings.
Cf. Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9
L.Ed.2d 811 (1963).

30

The distinction, if there be one, must rest on the absence of a request by

Bisignano and Russo to have counsel present during the interrogation. But both
reason and precedent dictate against such a distinction.

31

At every other stage of the proceedings at which a right to counsel attaches, the
right does not depend on a request for counsel nor can it be presumed that
failure to request counsel constitutes a waiver of that right. Carnley v. Cochran,
369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Uveges v. Com. of
Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127 (1948); Rice v. Olson,
324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945); see also Commonwealth ex
rel. Remeriez v. Maroney, 415 Pa. 534, 204 A.2d 446 (1964); Commonwealth
ex rel. Goodfellow v. Rundle, 415 Pa. 528, 204 A.2d 446 (1964);
Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964).

32

We can perceive no sound basis for holding that a request for counsel is a
prerequisite for the right to counsel at the interrogation stage while it is not at
any other. The test of waiver is the same, or should be, no matter what stage of
the proceedings is at issue, so long as the right has attached. In Escobedo the
Supreme Court recognizes this principle: 'The accused may, of course,
intelligently and knowingly waive his privilege against self-incrimination and
his right to counsel either at a pretrial stage or at the trial. See Johnson v.
Zerbst, 304 U.S. 458 (58 S.Ct. 1019, 82 L.Ed. 1461). But no knowing and

intelligent waiver of any constitutional right can be said to have occurred under
the circumstances of this case.' 378 U.S. at 490, n. 14, 84 S.Ct. at 1765. This
language of the Court compels the conclusion stated by Mr. Justice White in his
dissenting opinion that the only logical result is to require an intelligent waiver:
'Although the opinion purports to be limited to the facts of this case, it would be
naive to think that the new constitutional right announced will depend upon
whether the accused has retained his own counsel * * * or has asked to consult
with counsel in the course of interrogation. * * * At the very least the Court
holds that once the accused becomes a suspect and, presumably, is arrested,
any admission made to the police thereafter is inadmissible in evidence unless
the accused has waived his right to counsel.' 378 U.S. at 495, 84 S.Ct. at 1767.
33

No sound reasoning that we can discover will support the conclusion that
although at other stages in the proceedings in which the right attaches there
must be an intelligent waiver, at the interrogation level a failure to request
counsel may be deemed to be a waiver. In reviewing the facts of Escobedo, it is
apparent that Escobedo was well informed of his constitutional rights since
some days previously he had conferred with counsel and it must be assumed, as
the Supreme Court did assume, that counsel had informed Escobedo of his right
to remain silent and the effect any statement that he made might have. Yet the
Supreme Court held that such prior instructions were inadequate when
Escobedo was faced with the incriminating statements of his alleged partner in
crime. The Supreme Court held that at that very moment when he was
confronted with these statements, he was entitled to the guiding hand of
counsel.

34

The request by Escobedo to consult with his attorney is in and of itself evidence
that he was aware of his constitutional rights. Thus, it would seem that to
suppress a confession of one knowledgeable of his rights but who has
nonetheless confessed and to admit into evidence a confession of one who
might be unaware of his rights at the time of his confession would be sophistry.
The view that we have expressed here has been well stated by the California
Supreme Court: 'To require the request would be to favor the defendant whose
sophistication or status had fortuitously prompted him to make it.' People v.
Dorado, 42 Cal.Rptr. 169, 178, 398 P.2d 361, 370 (1965), cert. denied, 381
U.S. 937, 85 S.Ct. 1765, 14 L.Ed.2d 702 (1965). Professors Kamisar and
Choper have stated this same rationale in slightly different language: 'If the
right is deemed sufficiently important to be a due process requirement, why is it
not sufficiently important to be made available to the unwary, ignorant and
inexperienced as well as to the informed, sophisticated, and professional?'
Kamisar & Choper, supra at 61.5 'Failure to insist on an intelligent waiver of
the right to remain silent inevitably discriminates against the ignorant and

inexperienced, who may answer questions without any apparent coercion

simply because they believe that the police have the authority or power to make
them.' 78 Harv.L.Rev. 177, 217, 220 (1964). See also Enker & Elsen, supra at
77; 107 U.Pa.L.Rev. 286, 289 (1959).
35

We find ample judicial authority supporting the view that the right to counsel at
the interrogation stage does not depend on a request by the person interrogated,
although there are decisions to the contrary. In addition to the California
decision, Dorado, quoted supra, the Supreme Court of Oregon in a case similar
to the case at bar has held that the failure to warn the accused of his right to
remain silent requires that the confession be suppressed. State v. Neely, 395
P.2d 557 (1964). See also Commonwealth v. McCarthy, Mass., 200 N.E.2d 264
(1964); State v. Dufour, 206 A.2d 82 (R.I.1965); State v. Hall, 397 P.2d 261,
268 (Idaho 1964) (opinion of McQuade, J.); Campbell v. State, 384 S.W.2d 4
(Tenn.1964). The appellate courts of Illinois, People v. Hartgraves, 31 Ill.2d
375, 202 N.E.2d 33 (1964), cert. denied, 85 S.Ct. 1104 (1965); Maryland,
Sturgis v. State, 235 Md. 343, 201 A.2d 681 (1964),6 and New Jersey, State v.
Scanlon, 84 N.J.Super. 427, 202 A.2d 448 (1964),7 have, however, held that a
request is necessary for the Escobedo rationale to come into play. Accord,
People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852 (1965);
Bean v. State, 398 P.2d 251 (Nev.1965); Browne v. State, 24 Wis.2d 491, 129
N.W.2d 175, 131 N.W.2d 169 (1964), cert. denied, 379 U.S. 1004, 85 S.Ct.
730, 13 L.Ed.2d 706 (1965). The Supreme Court of Pennsylvania, in three
recent cases, Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d
288 (1965); Commonwealth ex rel. Storch v. Maroney, 416 Pa. 55, 204 A.2d
263 (1964) and Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964),
has also taken the view that a request is necessary. However, in the Linde
decision, supra, Justice Roberts wrote a separate concurring opinion in which
he stated: 'While I join in the majority opinion and conclusion, I am not entirely
untroubled by the fact that, at least in part, our test turns on a request for
counsel. There are some logical problems in making it do so. * * * Among
other things, I am somewhat bothered by the fact that a 'request test' may
protect only those who know enough to request counsel. Those most likely to
know that they should request counsel are persons often in criminal trouble
before, perhaps the habitual criminal. Those who are having their first
encounter with the law may be much less likely to have either the knowledge or
presence of mind to request counsel.' However, Justice Roberts was willing 'for
the present' to concur due to the Supreme Court's frequent references in
Escobedo to the "circumstances' of that case.' Justice Roberts concluded his
concurring opinion by noting, 'No doubt, we shall have further guidance from
the Supreme Court of the United States on this subject. In any event, if the law
enforcement officers of this Commonwealth unfailingly advise one upon whom

the spotlight of accusation has swung that he has a right to counsel, then the
stress in this area will be substantially lessened.' 416 Pa. at 338-339, 206 A.2d
at 292.
36

While we recognize the split of opinion in the state courts on this issue, we note
the reported decisions in the federal courts favorable to the view that we adopt
here. Wright v. Dickson, 336 F.2d 878 (9 Cir. 1964); United States v. Guerra,
334 F.2d 138, 144 (2 Cir.) (dictum), cert. denied, 379 U.S. 936, 85 S.Ct. 337,
13 L.Ed.2d 346 (1964); United States ex rel. Rivers v. Myers, 240 F.Supp. 39
(E.D.Pa.1965); United States ex rel. Dickerson v. Rundle, 238 F.Supp. 218
(E.D.Pa.1965); Galarza Cruz v. Delgado, 233 F.Supp. 944 (D.P.R.1964).
Contra, United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (7 Cir. 1964),
cert. denied, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965); Mitchell v.
Stephens, 232 F.Supp. 497 (E.D.Ark.1964). In Lee v. United States, 322 F.2d
770 (5 Cir. 1963), decided prior to the Supreme Court decisions in Massiah and
Escobedo, the Court of Appeals for the Fifth Circuit recognized the right to
counsel at the post-indictment interrogation stage and held that the right is not
lost by the failure to request counsel. Although another panel of the same
circuit refused to follow Lee on the broad ground that there was no right to
counsel at that stage of the proceeding, Lyles v. Beto, 329 F.2d 332 (5 Cir.
1964), the Supreme Court has vacated that latter judgment and remanded the
case back to the Court of Appeals in light of its decision in Massiah. 379 U.S.
648, 85 S.Ct. 613, 13 L.Ed.2d 552 (1965).

37

The Court of Appeals for the District of Columbia has, in dictum, agreed with
the result we reach here. Greenwell v. United States, D.C.Cir., 336 F.2d 962,
966 (1964).8 In two later decided cases of that Circuit, the court found the facts
to be sufficiently distinguishable from Escobedo and we think that these
decisions are not inconsistent with the result we have reached. In Jackson v.
United States, D.C.Cir., 337 F.2d 136 (1964), cert. denied, 380 U.S. 935, 85
S.Ct. 944, 13 L.Ed.2d 822 (1965), that court held that where the defendant had
been specifically told of his right to counsel on at least two separate occasions
and had been warned three times of his right to remain silent his admissions and
confession were admissible. In Long v. United States, D.C.Cir., 338 F.2d 549
(1964), the court held that where the defendant confessed immediately upon
being approached by the police and before the police could even identify
themselves and after the police then informed the defendant of their identity
and of the defendant's right to remain silent, he, nevertheless, offered further
details of the crime, the admissions and confession were admissible.

38

We can find no effective waiver here. 'The record must show, or there must be
an allegation and evidence which show, that an accused was offered counsel

but intelligently and understandingly rejected the offer. Anything less is not
waiver.' Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d
70 (1962). Compare Doughty v. Sacks, 175 Ohio St. 46, 47, 191 N.E.2d 727
(1963), rev'd per curiam, Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11
L.Ed.2d 650 (1964). Accordingly, the judgments of the court below must be
reversed and the cases will be remanded with directions that writs of habeas
corpus issue but without prejudice to the right of the State authorities to try the
defendants again on the same charges.
39

On Petition for Rehearing and on Petitions for Leave to Intervene as Amici

Curiae

40

Before KALODNER, Chief Judge, and BIGGS, McLAUGHLIN, STALEY,

HASTIE, FORMAN, GANEY, SMITH and FREEDMAN, Circuit Judges.

41

PER CURIAM.

42

A petition for rehearing and petitions for leave to intervene as amici curiae, to
file a brief and, if rehearing be granted, to participate in oral argument, have
been filed in these cases by prosecuting officers and prosecuting officers'
associations as set out in the footnote.9 We entered orders allowing these
prosecuting officers and prosecuting officers' associations to file briefs in
support of their respective contentions, reserving for future determination the
question as to whether or not rehearing should be granted. Extensive briefs have
been filed by the prosecuting officers and the prosecuting officers' associations
referred to and answering briefs have been filed by counsel for the relators. We
note that the brief filed jointly by the District Attorney in and for the City and
County of Philadelphia and by the two District Attorneys Associations contains
factual material, relating to the issue of the possible retroactivity of our
decision, which was not in evidence before the court below, is not part of the
records in these cases,10 and which was called to our attention for the first time
on June 1, 1965, when the petition for rehearing was filed by the County
Prosecutor of Essex County.

43

Portions of the briefs filed by the prosecuting officers and by the prosecuting
officers' associations are devoted to arguments to demonstrate that our decision,
any issue of retroactivity of the application of its principles aside, is erroneous.

44

As to any issue of the application retroactively of the principles enunciated by

our opinion and decision of May 20, 1965, we state that we have considered
and weighed carefully the contents of the petitions and their supporting briefs.

As has been indicated, the issue of the effect of the retroactive application of
the principles enunciated by this court was not before the court below and was
raised for the first time before this court by the petitions referred to in note 1,
supra.
45

Our rulings and decision in these cases were considered carefully in the light of
the records and the issues which were briefed and argued in the court below
and in this court. Consequently we decline, unless directed to do so by higher
authority, to pass on the issue of retroactivity so lately raised. The decision of
that issue should be deferred to some future and more appropriate occasion,
should such arise, when the issue of retroactivity had been raised in the trial
court and before this court on appeal from the trial court and not, for the first
time, by way of a petition for rehearing or by means of petitions for
intervention as amici curiae as here.

46

The issues involved in the instant cases are of such importance that they should
be put before the reviewing Tribunal as promptly as possible.

47

Rehearing will be denied.

48

McLAUGHLIN, Circuit Judge (dissenting).

49

I dissent from the denial of the petition for rehearing before the court en banc in
these appeals.

50

Escobedo is the governing law. That opinion strictly held that for a statement
by an accused to be excluded from being used against him at a criminal trial,
the process must be accusatory, its purpose to elicit a confession, '* * * and,
under the circumstances here, the accused must be permitted to consult with his
lawyer.' Escobedo v. State of Illinois p. 378 U.S. 492, 84 S.Ct. p. 1766. Earlier
in the opinion the Court had factually stated that Escobedo had an attorney and
had conferred with him about this particular case prior to being interrogated by
the police. The Court earlier in the opinion stressed that its narrow holding
included as a sine qua non that '* * * the suspect had requested and been denied
an opportunity to consult with his lawyer, * * *.' Konigsberg meticulously
follows Escobedo and does not eliminate the above major requirement as would
appear from page 12 of the present opinion.

51

In view of the above anything else is a minor matter but it should be said that
the district judge who saw and heard the witnesses notes that both an
electroencephalogram and a neurological examination found Russo to be within

normal limits; that he was within the average intelligence range; that the worst
thing that could be mentioned about his mentality was that he '* * * never
learned to react to others except in an impulsive and poorly controlled manner
with hostility and violence and unmindful of the consequences; * * *.' The
court specifically holds that neither '* * * Russo or Bisignano was a mentally
disturbed person of such low intelligence or capacity as to make him
susceptible to police interrogation.'
52

If the Supreme Court desires not merely to widen the Escobedo rule but to
strike from it one of its three required elements and so promulgate a new test,
that is up to the Supreme Court alone. Without that action an intermediate
appellate tribunal has no duty and no right to make such pronouncement. In so
doing, proper law enforcement under the Supreme Court mandate is
unwarrantably confused, weakened and broken down.

53

Fairness in crime investigation is no one-way street. A person interrogated with

reference to a crime is entitled to full fair play but so is the investigative
authority. Due process for law and order-- for the public, by proper questioning
of suspects has its rightful place under Escobedo. The majority here in its
enthusiasm would simply eliminate lawful authority from the equal protection
of due process. The destruction of the true balance of criminal justice could
well be the net result of the court opinion.

54

FORMAN, Circuit Judge (concurring).

55

As a senior judge, I am restricted from voting on the petition for rehearing

before the court en banc. Limiting myself to the question of whether the panel
should grant rehearing, I have concluded that it should not and, therefore,
concur in my colleagues' denial of the petition. I am constrained, however, to
rest on grounds other than those relied upon by the majority.

56

While the litigants never raised the legal issue of Escobedo's retroactivity prior
to filing the petition for rehearing, the relevant facts, namely, the date of the
exhaustion of direct appeal remedies by the habeas corpus applicants (June 17,
1963), and the date of the Escobedo decision (June 22, 1964), were before the
court and are matters of record. United States v. Bowles, 331 F.2d 742 (3 Cir.
1964) is not controlling for there the relevant facts were definitely absent from
the record. Any other factors bearing on the ultimate determination of the issue
are purely legal in nature.

57

If I had not felt Escobedo to be retroactive, I would not have favored reversal of

the District Court. It is not unusual, particularly in the light of the failure of
litigants to raise the issue, to apply new constitutional rules to cases finalized
before the promulgation of the new rule, without discussion. See Linkletter v.
Walker, 381 U.S. 618, 628, 85 S.Ct. 1731, 14 L.Ed.2d 601 (text and n. 13)
(1965). Indeed, we could not have ruled in the manner in which we did unless
Escobedo was to be applied retroactively. And Russo and Bisignano should not
have been given the benefit of Escobedo unless we were willing to apply it
retroactively.
58

In support of the rehearing, the petitioner and amici themselves rely heavily on
Linkletter v. Walker in which the Supreme Court declined to give retroactive
effect to Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081
(1961). There is, however, an important distinction between Mapp and
Escobedo relative to the question of their retroactivity. In Mapp, the Supreme
Court dealt with evidence seized in a search held to be violative of the accused's
fourth amendment rights. There was no question of the reliability of the
evidence sought to be introduced subsequent to the illegal search. Mapp thus
enunciated a rule limited to deterring unlawful police activity. Linkletter gave
emphasis to this factor in rejecting arguments favoring Mapp's retroactivity,
Linkletter v. Walker, 381 U.S. at 637, 85 S.Ct. 1731, and the petitioner follows
suit herein. At the same time, the Supreme Court announced a standard for
measuring when a new constitutional rule should be applied retroactively. The
test is: When the repudiated rule could have affected 'the fairness of the trial-the very integrity of the fact finding process'-- the new constitutional principle
is to be applied retroactively. As measured by this standard Escobedo should be
applied retroactively. The problems of the administration of justice considered
in Mapp may not thwart such application here. See Linkletter v. Walker, 381
U.S. at 637-639, 85 S.Ct. 1731.

59

The new rule of Escobedo was not one limited to deterring unlawful police
activity. To be sure, that was one of the important considerations in announcing
the rule. But there were others of at least equal importance. Two critical factors
emerge which reflect the underlying policy of the Escobedo rule, namely, (1)
the assistance of counsel at the accusatory stage of the proceedings enables the
accused to properly exercise his rights, and (2) implementing a right to counsel
at the accusatory stage assists in the difficult task of resolving the question of
coercion where a confession is obtained during a closed interrogation. See
Note, The Curious Confusion Surrounding Escobedo v. Illinois, 32 U. Chi. L.
Rev. 560, 563-64 (1965) and cases cited therein. When a conviction is sought
assisted by the introduction of a confession, failure to apply the Escobedo rule
(which now enables an accused to properly exercise his rights at the accusatory
stage of the proceeding and maximizes the ability of the judiciary to rule on the

voluntariness of a confession) has the potential to impair the fairness of a trial

and to weaken the integrity of the fact finding process.
60

The petitioner seeks to avoid this result by emphasizing that both the District
Court and this court found Russo's and Bisignano's confessions voluntary. That
being so, argues the petitioner, their introduction into evidence could not have
resulted in an unfair trial or distorted the fact finding process. The petitioner,
however, misconceives the Escobedo standard of confession admissibility. We
affirmed the District Court's findings of voluntariness by considering the
traditional grounds of physical coercion and mental overbearing in the light of
the facts available to us. A finding of either would serve as a basis for ruling a
confession involuntary and inadmissible. Escobedo, however, made the factor
of counsel's non-participation at the accusatory stage of the proceeding another
independent basis for confession inadmissibility. This new standard, as is
indicated above, in part stemmed from the view that at the accusatory stage of
the proceeding the inability to implement one's rights may have a potent effect
on the voluntariness of a confession. The difficulty in making a judicial
determiation of voluntariness, absent counsel's participation at the accusatory
stage of the proceeding, heightens the potentiality for undetermined
involuntariness. As was indicated in our opinion in the instant case, a greater
reliance has been placed on the presence or absence of counsel as a means of
determining voluntariness of confessions. Thus, though it could not be said that
the traditional standards of voluntariness were violated, based on the record
before us, neither could it be said that the potential of an involuntary confession
was absent in the light of the policy underlying Escobedo.

61

The foregoing impels me to the conclusion that rehearing by the panel should
be denied, but for my part I would clearly state that Escobedo has been given
retroactive effect in these cases.

The New Jersey Crim.Prac.R. 3:2-3 provides in pertinent part:

'(a) Appearance. * * * A person making an arrest without a warrant shall take
the arrested person, without unnecessary delay, before the nearest available
magistrate * * *.
'(b) Preliminary Hearing. The magistrate shall inform the defendant of the
complaint against him and if a copy of the complaint has not previously been
furnished to the defendant, he shall be supplied with a copy thereof. The
magistrate shall also inform the defendant of his right to retain counsel or, if
indigent, of the privilege of having counsel assigned, and of his right to have a

preliminary examination. The magistrate shall allow the defendant reasonable

time and opportunity to consult counsel. He shall also inform the defendant of
his right to make a statement not under oath as to the charge against him, that
he is not required to make such a statement and that any statement made by him
may be used against him. * * *
'(c) Preliminary Examination. * * * If the defendant does not waive
(preliminary) examination, the magistrate shall hear the evidence within a
reasonable time. The defendant may cross-examine witnesses against him. If,
from the evidence, it appears to the magistrate that there is probable cause to
believe that an offense has been committed and the defendant has committed it,
the magistrate shall forthwith bind him over to await final determination of the
cause, otherwise, the magistrate shall discharge him * * *. The magistrate shall
admit the defendant to bail as provided by these rules.'
2

Cf. Slovenko, Representation for Indigent Defendants, 33 Tul.L.Rev. 363, 371

(1959)

'In all criminal prosecutions, the accused shall enjoy the right * * * to have the
Assistance of Council for his defence.'

It is to be noted that the court below, when it filed its opinion in the instant
cases, did not have the benefit of these two far-reaching decisions of the
Supreme Court

See also Lockhart, Kamisar & Choper, Constitutional Law, 1964 Supp. at p. 39,
notes 4-6; Note, 19 Rutgers L.Rev. 111 (1964); 53 Cal.L.Rev. 337, 359-61
(1965)

The rule in Maryland is now well-settled. Davis v. State, 236 Md. 389, 204
A.2d 76 (1964); Henn v. State, 236 Md. 615, 203 A.2d 899 (1964); Green v.
State, 236 Md. 334, 203 A.2d 870 (1964); Parker v. Warden, 236 Md. 236, 203
A.2d 418 (1964); Hyde v. Warden, 235 Md. 641, 202 A.2d 382 (1964);
Mefford v. State, 235 Md. 497, 201 A.2d 824 (1964); Bichell v. State, 235 Md.
395, 201 A.2d 800 (1964)

The New Jersey Supreme Court has indicated that it will follow this result.
State v. Smith, 43 N.J. 67, 202 A.2d 669 (1964), cert. denied, 379 U.S. 1005,
85 S.Ct. 731, 13 L.Ed.2d 706 (1965); State v. Vigliano, 43 N.J. 44, 202 A.2d
657 (1964). See also State v. Johnson, 43 N.J. 572, 206 A.2d 737 (1965)
Apparently, the Supreme Courts of Virginia, Wansley v. Commonwealth, 205
Va. 412, 137 S.E.2d 865 (1964), cert. denied, 380 U.S. 922, 85 S.Ct. 920, 13
L.Ed.2d 806 (1965) and Ohio, McQueen v. Maxwell, 177 Ohio St. 30, 201

N.E.2d 701 (1964), will also require a request for counsel. Ohio adhered to this
position in State v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349 (1964), a case
which was remanded back to it by the Supreme Court, 378 U.S. 582, 84 S.Ct.
1922, 12 L.Ed.2d 1037 (1964), for reconsideration in light of Massiah.
8

See also, Queen v. United States, 118 U.S.App.D.C. 262, 335 F.2d 297 (1964);
Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964 (1964)

The petition for rehearing was filed by the County Prosecutor Essex County,
New Jersey, by the Assistant Prosecutor, who appeared on behalf of the
respondents. The Attorney General of New Jersey has filed a brief entitled
'Brief on Rehearing of Amicus Curiae, the State of New Jersey.'
Petitioners for leave to intervene as amici curiae, to file a brief, and if rehearing
be granted, to participate in oral argument, were filed by the District Attorney in
and for the City and County of Philadelphia, by the National District Attorneys
Association and by the District Attorneys Association of Pennsylvania.

10

See United States v. Bowles, 331 F.2d 742, 748-749; Rehearing den. 334 F.2d
325 (3 Cir. 1964)